SECOND SECTION

Application no. 36158/10 Anđelka VELIČKOVIĆ against Serbia lodged on 15 June 2010

STATEMENT OF FACTS

The applicant, Ms Anđelka Veličković , is a Serbian national, who was born in 1961 and lives in Velika Plana. She is represented before the Court by Mr S. Stanojević , a lawyer practising in the same town.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a neuropsychiatrist employed with the State-run Health Care Centre ( Dom zdravlja ) in Velika Plana (hereinafter “the HCC”). She is also a certified forensic expert ( stalni sudski veštak ).

On 20 March 2009 the applicant filed a request with the HCC, seeking permission for a subspecialisation ( uža specijalizacija ) in forensic psychiatry.

On 23 March 2009 the HCC rendered its approval, and on 28 May 2009 issued a formal decision ( rešenje ) to this effect.

On 10 June 2009 the Public Health Institute ( Zavod za javno zdravlje ) in Požarevac adopted an opinion endorsing the applicant ’ s request.

On 24 August 2009 the Director of the HCC issued yet another decision ( odluka ) authorising the subspecialisation sought by the applicant.

On the same date, the HCC also addressed the Ministry of Health ( Ministarstvo zdravlja ), seeking its consent ( saglasnost ) in this regard.

On 19 November 2009 the applicant personally sent a letter to the Ministry. She explained that she had informally learned of the fact that her request had been rejected, but had never received a formal, written decision so stating. The applicant stressed that the Ministry was obliged to provide her with the decision in question so that she could then exercise her right to bring a judicial review case against it.

On 25 November 2009 the Ministry sent an information note ( obaveštenje ) to the applicant, stating that the HCC ’ s decision regarding her subspecialisation was not in accordance with the general priorities set for 2009. The Ministry further noted that in such circumstances there was no need to formally consider whether its consent would be warranted.

On 8 December 2009 the applicant filed an appeal with the Constitutional Court , alleging, inter alia , that she had suffered a breach of her right of access to a court, i.e. a “ legal remedy” within the meaning of Article 36 of the Constitution.

On 4 February 2010 the Constitutional Court rejected this appeal, stating that the Ministry ’ s decision of 25 November 2009 did not concern the applicant ’ s pre-existing entitlement to additional professional betterment ( zato što istom “ nije ni odlučivano o pravu podnositeljke ustavne žalbe da bude upućena na dodatno stručno usavršavanje ”) .

B. Relevant domestic law and practice

1. The Constitution of the Republic of Serbia ( Ustav Republike Srbije ; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06)

Article 32 § 1 provides that “[e] veryone shall have the right to ... [a fair hearing before a] ... tribunal ... [in the determination] ... of his rights and obligations ...”.

Article 36 § 2 provides that “e veryone shall have the right to an appeal or another legal remedy against a decision concerning the determination of his rights, obligations or lawful interests”.

Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”

2. The Constitutional Court Act ( Zakon o Ustavnom sudu ; published in OG RS no. 109/07)

The relevant provisions of this Act read as follows:

Article 7 § 1

“The decisions of the Constitutional Court shall be final, enforceable and binding.”

Article 82 § 1

“A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law.”

Article 89 § 2

“When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time.”

3. The Health Care Act ( Zakon o zdravstvenoj zaštiti ; published in OG RS no. 107/05)

Article 181 provides , inter alia , that “professional betterment” ( stručno usavršavanje ) shall include specialisation and subspecialisation ( specijalizaciju i užu specijalizaciju ).

Article 182 provides, inter alia , that health care providers, including medical doctors, shall have the right and the obligation to professional betterment. Health care institutions shall facilitate such programmes in accordance with the law.

Article 183 provides, inter alia , that all health care institutions shall harmonise their professional betterment programmes in accordance with the general priorities set by the Ministry of Health.

Article 184 §§ 4-7 provides, inter alia , that local health care institutions shall decide upon all requests concerning professional betterment. A subsequent decision on this issue shall also be issued by the directors of these institutions personally. The Minister of Health shall, ultimately, either grant or withhold consent ( saglasnost ) on the issue through a formal decision ( rešenjem ). The said decision shall be final ( konačno ), and may be challenged by means of a judicial review procedure ( može se pokrenuti upravni spor ).

4. The Administrative Disputes Act ( Zakon o upravnim sporovima ; published in the Official Gazette of the Federal Republic of Yugoslavia no. 46/96)

Article 6 provides that an administrative dispute may only be instituted against an “administrative act”, which is, inter alia , a decision adopted by a State body in the determination of one ’ s rights and obligations concerning “an administrative matter”.

An “administrative act” shall be rendered as a formal decision, rešenje , on the matter in question ( see Komentar Zakona o opštem upravnom postupku i Zakona o upravnim sporovima , Svetislav Vuković , Poslovni biro, Belgrade , 2006, p. 173).

5. The Supreme Court ’ s decision U. 1384/88 of 31 January 1989

An information note shall not be considered as an “administrative act” within the meaning of Article 6 of the Administrative Disputes Act, nor shall it, hence, be open to a challenge before the courts of law.

COMPLAINTS

The applicant refers to Articles 6 and 14 of the Convention, as well as Article 2 of Protocol No. 1. In substance, she complains about: (a) the administrative rejection of her request for a subspecialisation; (b) the subsequent breach of her right of access to a court in the determination thereof; and (c) the fact that similar requests filed by others in her situation had been granted.

QUESTIONS

1. Did the applicant ’ s request for a subspecialisation concern the determination of her civil rights and obligations, within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis , Kök v. Turkey , no. 1855/02, §§ 36 and 37, 19 October 2006) ?

2. Has the applicant been denied, in breach of Article 6 § 1 of the Convention, the “right to a court” in the determination of her civil rights and obligations ?